Escape from Guantánamo by Plea Deal

Yesterday, Canadian detainee Omar Khadr pled guilty to all five charges against him, in an 11th-hour plea deal that averted the scheduled resumption of his military commission trial. Imprisoned since his capture in Afghanistan at age 15, Khadr has spent a third of his life in U.S. detention.

If Khadr’s trial had gone forward, it would have been the first military commission trial under Obama and only the second contested trial since Bush created the Guantánamo military commissions. Khadr’s conviction brings the total number of convictions in the military commissions to five, three of which were obtained through plea deals. It is not a track record to applaud: only five convictions in nearly nine years. In that time, over 400 defendants have been convicted of terrorism-related offenses in federal court.

After Khadr’s lawyer announced the guilty plea yesterday, the military judge asked Khadr a battery of questions about whether he understood the offenses he was admitting he had committed, going through the elements of each in rapid-fire legalese. Bearded and wearing a dark pinstriped suit, the 24-year-old toyed with his microphone and whispered “yes” to each of the judge’s questions. Khadr’s Canadian lawyer leaned over and appeared to be showing him a written script whenever it came time for him to answer the judge.

As part of the script, Khadr admitted that he shot and killed two Afghan soldiers who were killed in the firefight in which he was was the only captured survivor. Prosecutors have never introduced, or even claimed that they have, evidence to suggest that Khadr was responsible for the Afghan soldiers’ deaths. In July, Khadr rejected a previous secret plea deal because, he said, he wouldn’t admit to crimes he didn’t commit. It seems that yesterday he even admitted to a crime he was not accused of committing. Khadr also pled guilty to throwing the grenade that killed Sgt. Christopher Speer in the same firefight, an allegation that has been a part of the case all along.

Khadr pled guilty in exchange for a set sentence that will be made public after a jury of military officers — who don’t know the terms of the plea deal — sentences him. Khadr will serve whichever sentence is shorter, either the one under the plea agreement, or the one the jury sets. We do know that under his plea agreement, Khadr will serve one year more at Gitmo, on top of the eight he’s already served, then he can apply to serve out the rest of his sentence (rumored to be seven more years) in Canada. Starting today, the jury will hear victim testimony and mitigating evidence, in a sentencing hearing that may just be for show.

As part of his plea deal, Khadr waived his right to appeal. He also waived his right to sue the U.S. government for his abuse and detention at Guantánamo, and agreed to be interrogated by the U.S. government at any time over the year he remains in U.S. custody.

By agreeing to the plea deal, prosecutors avoided the years of legal appeals that can be expected in any military commissions case. In particular, prosecutors avoided having the military appellate court decide whether the invented war crimes Khadr is convicted of committing are illegal since they aren’t actually war crimes. (All five of the charges to which Khadr pled guilty yesterday—battlefield murder, attempted murder, conspiracy, material support for terrorism, and spying—are not war crimes under the laws of war. They were made up just for the Gitmo military commissions.)

Khadr’s Canadian lawyer, Dennis Edney, said yesterday, “He had to make a hellish decision. And he had to make it on his own to get out of Guantánamo Bay.”

Faced with an unfair system designed to produce convictions, not justice, it seems the only reliable way for Khadr to end his Guantánamo and military commissions nightmare was to plead guilty.